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Reviewing Legal Agreement

My Tenant Died

Legal Concern

Death of a Tenant

The Landlord brings forth concerns that their tenant has died, and there are no other tenants.

What happens when a Tenant dies?

Section 91(1) address the concerns and situation when a Tenant becomes deceased.

Death of tenant 91 (1) If a tenant of a rental unit dies and there are no other tenants of the rental unit, the tenancy shall be deemed to be terminated 30 days after the death of the tenant. 2006, c. 17, s. 91 (1)

What does this mean? Well, after 30 days, the tenancy is ended, and the Landlord may re-rent the unit to whomever, and to what ever price the Landlord and new tenant agree upon.

What happens to the property of the tenant?

Section 92 deals with the tenant’s property. In short, you must leave the property where it is until the Tenancy has ended in accordance with Section 91(1) {30 days after the tenant has died}. It is your responsibility to preserve the property for the 30 days, but you may discard any unsafe or unhygienic items immediately—garbage essentially--.

After 30 days, the Landlord may discard, sell, or retain the tenant’s items. Section 92(2) also states that the Landlord cannot be held liable for discarding the tenant’s property if a family member or executor returns to claim the property. However, the laws in 92(3) and (4) state that if the Tenants Family member or executor within 6 months ask for the property back. The landlord is responsible for returning any items he or she personally kept, and returning the money of any items he or she sold minus the reasonable out of pocket expenses for moving, storing, securing or selling the property, and for rent arrears.

What happens to occupants who are not tenants?

This is a common question, and many occupants try and state they are tenants. To answer this question, we must determine who a Tenant is as defined under the Residential Tenancies Act 2006, and who is not a tenant but rather a guest.

1. Who is a Tenant?

The Act defines a Tenant as:

“tenant” includes a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives, but “tenant” does not include a person who has the right to occupy a rental unit by virtue of being,

(a) a co-owner of the residential complex in which the rental unit is located, or

(b) a shareholder of a corporation that owns the residential complex; (“locataire”)

Therefore, a Tenant is a person who pays rent to occupy a space. You do not require a lease to form a tenancy. A tenancy does not require a formal lease, a verbal agreement is sufficient. Therefore, you must act very carefully when you have occupants who are not tenants, otherwise, inadvertently, they may become your tenants.

2. What is an Unauthorized Occupancy?

Essentially, an Unauthorized Occupancy is anybody occupying a unit without the original tenant, and without the Landlords Consent. This may result because the Old Tenant Assigned the unit without permission, the Tenant passed away and a roommate is occupying the space, The Tenant abandoned the unit and someone else is now occupying the unit. Unauthorized Occupants, are not tenants but if you do not tread carefully, the unauthorized occupant may become a tenant inadvertently, and after 60 days of no action by the Landlord.

The Law States:

Unauthorized occupancy

100 (1) If a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred. 2006, c. 17, s. 100 (1

3. What do you do about an Unauthorized Occupant?

Firstly, you must determine if the individual in the unit is an Unauthorized Occupant:

a. A guest in the house where the original tenant is living is not an Unauthorized Occupant.

b. A subtenant is not an unauthorized occupant but can become unauthorized if they overstay their welcome.

c. A person the Landlord agrees to assign to is not an Unauthorized Occupant.

d. Section 95-- Assignment of Tenancy 95 (1) Subject to subsections (2), (3) and (6), and with the consent of the landlord, a tenant may assign a rental unit to another person. 2006, c. 17, s. 95 (1). If you give permission to an Unauthorized Occupant to stay in the unit, you have formed a tenancy, verbal admission, or written agreement, you cannot kick the tenant out as an Unauthorized Occupant once you have provided permission.

e. Subletting rental unit: 97 (1) A tenant may sublet a rental unit to another person with the consent of the landlord. 2006, c. 17, s. 97 (1). A sublet is not an Unauthorized Occupant, if you have agreed to the Sublet, but the Sublet can become an Unauthorized Occupant if they occupant overstays their agreement.

4. Once you determine that Occupant is Unauthorized how long do you have to Act?

Section 100 (2) states that you have 60 days to Act. Once you have let the Unauthorized Occupant stay for more than 60 days upon discovering the Occupant, you have inadvertently let the Occupant become your Tenant. Therefore, you must act quickly.

Time limitation

(2) An application under subsection (1) must be made no later than 60 days after the landlord discovers the unauthorized occupancy. 2006, c. 17, s. 100 (2)

Deemed assignment

(4) A person’s occupation of a rental unit shall be deemed to be an assignment of the rental unit with the consent of the landlord as of the date the unauthorized occupancy began if,

(a) a tenancy agreement is not entered into under subsection (1) or (2) within the period set out in subsection (3);

(b) the landlord does not apply to the Board under section 100 for an order evicting the person within 60 days of the landlord discovering the unauthorized occupancy; and

(c) neither the landlord nor the tenant applies to the Board under section 101 within 60 days after the end of the subtenancy for an order evicting the subtenant. 2006, c. 17, s. 104 (4).

5. How do you Act to remove an Unauthorized Occupant?

You must as quickly as reasonably possible complete Form A2:

I have attached the forms CRTL and click the above link. Follow the instructions, if you are not confident in completing the process yourself, contact a Paralegal or Lawyer to assist you with the Application, our office can assist in these types of Applications but you must readily act, and be cautious not to inadvertently create a Tenancy.

6. Can I collect “Rent” From the Unauthorized Occupant.

Rent can only be collected from a Tenant; however, you can collect Compensation from the Unauthorized Occupant without forming a Tenancy. In order to collect Compensation, I would have it in writing that this is not a Tenancy, you are not forming a Tenancy, and by collecting this money, you are still considered an Unauthorized Occupant, this is for the compensation of the Unit while my A2 Application is proceeding through the Landlord and Tenant Board to determine the issues before the Tribunal, and your status as an Unauthorized Occupant. It is in my belief that you are not my Tenant but an Unauthorized Occupant for which the legal details are being dealt with by Proceedings at the Landlord and Tenant Board. I would have the Occupant sign. You can also, instead, seek compensation in the A2 Form which may be deemed your safer legal recourse. However, every specific case should be reviewed by a Paralegal or Lawyer to determine the best legal strategy. Do not act without first consulting a Legal Representative.

Compensation, unauthorized occupant

103 (1) A landlord is entitled to compensation for the use and occupation of a rental unit by an unauthorized occupant of the unit. 2006, c. 17, s. 103 (1).

Effect of payment

(2) A landlord does not create a tenancy with an unauthorized occupant of a rental unit by accepting compensation for the use and occupation of the rental unit, unless the landlord and unauthorized occupant agree otherwise. 2006, c. 17, s. 103 (2).

In conclusion, an Unauthorized Tenant caused by the Death of Lawful Tenant can become a serious issue. You must act strategically, quickly, and file the correct paperwork as soon as possible. Seek legal recourse when available and be cautious not to create a Tenancy inadvertently.

*None of this information constitutes legal advice, nor is relevant to any specific matter. Please consult a member of the Law Society—Lawyer or Paralegal—before acting on any of the information in this booklet. You cannot consider the information in this booklet as Legal Advice or rely on it for any specific case. This is general information, and your case may be quite different to the information presented in this handout. Please do not consider this lawful legal advice for any matter. *

Jordan Nieuwhof Paralegal

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